Trial attorneys are underdogs. We wage battle on behalf of the little guy, after all. We go for broke against large insurance companies, which often have nothing to lose but marginal sums of money. It’s the classic battle of David vs. Goliath. Trial lawyer Randi McGinn isn’t necessarily buying the underdog label. In her latest book, she warns that big corporations should be afraid. Very afraid.
National Financial, LP v. Pobuda, 2014 IL 116717
Property ownership is one of the oldest and most valued rights we enjoy. That’s why it’s also one of the most protected rights—protection strong enough to trump the 1st Amendment at times. Still, the use and enjoyment of land is not exclusively limited to the landowner. Often, people seek permission to use land that is owned by someone else. But sometimes, land is utilized without express permission. In Illinois if there is a non-permissive use land for a 20-year period, and that use is adverse, uninterrupted, exclusive, continuous and under a claim of right, the user can claim something called a “prescriptive easement.”
Prescriptive easements can come about through simple situations. For example, a person crosses a portion of your land without your permission every weekday on his/her way to and from work. After 21 years, you put up a fence that says “no trespassing,” yet said person continues to cross. Unfortunately, by law, you acquiesced to that person’s use of the land and, at the 20th year, that person now has a right to use what they have enjoyed uninterrupted for 21 years. It is a limited right; the person cannot exclude the landowner or anyone else, but can enjoy that particular use. It even applies should you decide to purchase a parcel of land that already contains a prescriptive easement.
Nationwide Financial purchased a parcel of land and found that the owners of the next parcel overused the northwest corner as a driveway. Both parcels would be landlocked absent a gravel road easement. Michael and Laura Pobuda bought their home 18 years prior to Nationwide’s purchase and 21 years prior to Nationwide’s suit. The landowner prior to the Pobudas lived for 15 years on the same property and used the northwest corner of present-day Nationwide’s land. The Pobudas and previous landowners never sought permission for the use of the northwest corner. Nationwide sought a judgment from the court that the Pobudas’ use of its land represents an unlawful trespass. The Pobudas asserted that they had a prescriptive easement; Nationwide disagreed.
Both the circuit court and the appellate court agreed with Nationwide, focusing on the exclusivity element. They characterize exclusive as depriving the owner of all use and found that the Pobudas did not fulfill that requirement. Therefore their claim failed. The Illinois Supreme Court disagreed and found that exclusive use does not need to deprive the owner of use, but only that the right of the person asserting the easement does not depend upon a like right in others. In other words, the Pobudas use of the land was not subject to permission or other rights.
Nationwide also argued that the use was not adverse but, rather, a neighborly courtesy extended from one the previous owners, long ago. While the theory is sound, the neighborly courtesy is a form of permission which would defeat an adverse claim, the facts do not support that theory in this case. ILSC found that the origin of the right of way lacked evidence to suggest it was permissive, in-fact, the origin of the right of way is unknown. The Court concluded that as a matter of law the Pobudas satisfied the elements of exclusivity and adversity necessary to establish a prescriptive easement claim.
Bruns v. City of Centralia, 2014 IL 116998
As discussed in a previous post, a landowner must protect those people present on the landowner’s land from dangerous conditions on the land. However, when a dangerous condition is open and obvious, the landowner can assume that a reasonably prudent person would, on his or her own accord, take the proper precautions to avoid the danger. But, just because a danger is open and obvious does not mean that someone injured by it is without any legal recourse. There is a balancing test to determine whether the landowner owed a duty to the invitee despite the openness and obviousness of the dangerous condition.
The four factors are:
- Likelihood of the injury;
- The burden on the land owner in guarding against the injury; and
- The consequence of placing that burden on the land owner.
When a court finds that the danger was open and obvious, the weight of the first two factors tip in the landowner’s favor. With a danger that is not open and obvious the inverse in true. Because the court applies a balancing test in these types of cases, depending on the circumstances, one factor could be given much more weight than another.
In other words, an open and obvious danger could still leave a landowner liable if she can reasonably anticipate an invitee will get distracted, causing the invitee to not discover, forget about, or fail to protect herself from the obvious danger. This is known as the distraction exception to the open and obvious rule. Enter, Virginia Bruns, as she was walking to her eye appointment in Centralia, Illinois, just as she did nine times in the three months. This time, though, she stubbed her toe on an uneven slab of sidewalk, causing her to fall and injure herself.
This particular sidewalk has a history of being defective. The defect gradually developed due to the roots of a nearby tree. The eye clinic, in two instances, contacted the city to have the tree removed, even offering to do it themselves. The city refused because of the 100 year old tree’s historical significance. On the second occasion, the eye clinic called because someone tripped and fell on the sidewalk. Virginia testified that she noticed the defect during her preceding visits.
She sued the City of Centralia alleging that Centralia should have reasonably foreseen that someone would become distracted and fail to protect herself from the dangerous condition. The distraction Virginia was asserting involved her looking at the door of her destination. The Circuit court ruled that the sidewalk defect was open and obvious and rejected Virginia’s distraction argument. Virginia’s argument, the circuit court opined, leads to an expansion of negligence law that would provide a universal exception to the entire open and obvious doctrine because anybody could then claim they were distracted by anything at all.
Virginia appealed, the appellate court found that it was certainly foreseeable that one might have their attention focused on their destination rather than on the sidewalk immediately ahead. Further, that Centralia had a duty to remedy the defect in a reasonable time frame but determining breach is a question of fact. Centralia appealed to Illinois Supreme Court, who reversed the appellate court and affirmed the circuit court.
The Illinois Supreme Court concluded that the mere fact of looking elsewhere does not constitute a distraction because a landowner cannot anticipate and protect against every single event that may occur in the distracted minds of his invitees. That conclusion was supported by a 2005 appellate decision and the Second Restatement of Torts, specifically noting that being preoccupied with one’s own thoughts is not a valid distraction to qualify as an exception. Examples when the distraction exception applies, as discussed by the Court are: using the only exit brought the invitee into contact with a dangerous condition; the invitee was given a task that directed her into the area with the dangerous condition; and the invitee was looking up in order to avoid falling debris while traversing the dangerous condition. These are very limited circumstances, indeed.
After that conclusion the Court considered the second two factors. The Court assumed that the burden was not great on Centralia to remedy sidewalk defects or otherwise protect pedestrians. Great weight was placed on the consequence factor, finding that the imposition of this burden would extend to the entirety of Centralia’s sidewalks. A consequence that is just not justified by the nature of this open and obvious defect. In other words, while Centralia could easily maintain and protect the city’s sidewalks, it does not give grounds to the Court to hold them liable for every instance of idle minded pedestrians falling on their defective sidewalks because it would be easier or more efficient for the pedestrian to just avoid the loss.
Remember, each case is unique. Your slip and fall is not necessarily exactly like someone else’s – and neither are your distractions. This area of the law is very sensitive to facts, so speak with an experienced attorney who can help you determine if you have a legal claim for injuries.
Annolino v. The City of Chicago, 2015 IL App (1st) 141934-U
Land owners have a duty to warn and protect invitees from defects that may cause injury, unless the defect is considered open and obvious. For a defect to be open and obvious the invitee has to prove that she was distracted and the landowner could reasonably anticipate that distraction. Generally speaking, we are considered invitees when we are on land owned by the City of Chicago. Therefore, Chicago has a duty to warn and protect us from dangerous conditions on city sidewalks and to take reasonable care that city land is safe and not likely to cause harm.
Imagine a clear August day in Chicago. Debra and Joe Annolino are walking from their daughter’s apartment on East Scott Street at around 8:45am. They are in front of an apartment complex when, suddenly, Debra trips and falls on a slab of sidewalk that’s raised 2.5 inches. She broke her right index finger and fractured her left kneecap, and sued the City of Chicago. Debra testified that she was not distracted, other than talking to her husband and looking around; fairly normal and expected behaviors. But, Debra also stated that if she had been looking down at the condition of the sidewalk, she would have seen the defect. The manager of the complex provided evidence that she sent letters to the prior and current alderman to fix the sidewalk where Debra fell.
Debra and Joe sued the City of Chicago for negligence, alleging that Chicago failed to maintain and repair the elevated sidewalk, failed to warn the public, and ignored specific complaints about the sidewalk. Debra further alleged that if Chicago exercised ordinary care then it should have known about the state of the sidewalk. The attorneys for the City disagreed, arguing that Debra’s fall and subsequent injuries were due to her own negligence and her failure to keep a proper lookout.
Chicago moved for judgement, arguing, using Debra’s deposition as support, that it owed no duty to Debra because the condition of the sidewalk was open and obvious. Debra responded that the condition was not open and obvious and, even if the court found that it was, the distraction exception applies. Debra reasoned that the condition could not be open and obvious because so many other people have tripped or fallen on that same condition before her. The Honorable John H. Ehrlich, circuit court judge, found Debra’s argument contrary to her own testimony and ruled in favor of Chicago. Without establishing that the city owed her a duty, Debra could not maintain her cause of action for negligence.
Debra asked the court to reconsider, arguing that Chicago owed her a duty of care because the alderman was on notice and the city had the funds to fix the defect. The court denied the motion and Debra appealed. The Appellate Court affirmed Judge Ehrlich’s decision, finding that the condition was open and obvious. Debra appealed to the Supreme Court. The Court then considered the distraction exception. Previously, the Court found that the distraction exception can only apply when there is evidence from which a court can infer that the plaintiff was actually distracted; whereas the mere fact of a plaintiff looking elsewhere does not constitute a distraction.
Here, the Court also found Debra’s testimony to be damning, the distractions that she alleged or testified were only speaking with her husband and looking around. An argument specifically rejected by our Supreme Court in a 2014 decision. That decision, which is the subject of another article, found that a distraction exception must be one that is not solely the plaintiff’s own creation. Looking around and holding a conversation were in Debra’s own creation and therefore did not qualify as a distraction under the exception.
In many cases, insurance reps are looking to do one thing. And it’s usually not in your best interests. Ken explains.